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Huffman v. Berryhill

United States District Court, S.D. West Virginia

April 14, 2017

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         Pending are the objections filed on March 10, 2017, by the Commissioner to the magistrate judge's Proposed Findings and Recommendation (“PF&R”).[1]

         I. Procedural History

         On March 10, 2016, James Brian Huffman (“plaintiff”) instituted this civil action pursuant to 42 U.S.C. § 405(g). Plaintiff seeks judicial review of the Commissioner's administrative decision denying his application for disability insurance benefits and supplemental security income.

         This action was referred to United States Magistrate Judge Dwane L. Tinsley for consideration, pursuant to 28 U.S.C. § 636(b)(1)(B) and standing order in this district. The magistrate judge filed his PF&R on February 28, 2017. In that document, the magistrate judge recommends that plaintiff's motion for judgment on the pleadings be granted, that the motion for judgment on the pleadings filed by the Commissioner be denied, that the Commissioner's final decision be reversed, and that the case be remanded to the Commissioner for further proceedings. See PF&R, 23. On March 10, 2017, the Commissioner filed objections to the PF&R. Plaintiff responded to the objections on March 20, 2017.

         The Commissioner objects to the PF&R on two grounds. First, she states that the magistrate judge erred in finding that remand was required due to the ALJ's failure to evaluate plaintiff's IQ score of 70, because “an IQ score alone is insufficient to prove disability at the listings stage.” Commissioner's Objections to PF&R (“Obj.”) at 2. Second, she states that the magistrate judge erred in finding that the ALJ did not apply the special technique required by § 404.1520a(a) in assessing a claimant's mental impairments. Id. at 5.

         II. Standard of Review

         The court reviews de novo those portions of the magistrate judge's PF&R to which objections are timely filed. 28 U.S.C. § 636(b)(1)(B); see Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982); see also 20 C.F.R. § 416.927(e)(1) (ultimate decision regarding disability determinations rests with the Commissioner). On the other hand, the standard for review of the Commissioner's decision is rather deferential to the Commissioner, for, “[u]nder the Social Security Act, [a reviewing court] must uphold the factual findings of the [ALJ] if they are supported by substantial evidence and were reached through application of the correct legal standard.” Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005); Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974) (court must scrutinize the record as a whole to determine whether the conclusions reached are supported by substantial evidence); see also 42 U.S.C. § 405(g). Substantial evidence is that which “a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citations omitted).

         “In reviewing for substantial evidence, [a district court does] not undertake to reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the ALJ.” Johnson, 434 F.3d at 653. Substantial evidence is by definition more than “a mere scintilla, ” Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996), but “may be somewhat less than a preponderance, ” Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1996)).

         III. Discussion


         The Social Security regulations establish a “sequential evaluation” for the adjudication of disability claims. See 20 C.F.R. §§ 404.1520(a), 416.920. The first question is whether the claimant is currently engaged in gainful employment. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If not, the second question is whether the claimant suffers from a severe impairment. §§ §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If so, the third question is whether the claimant's impairment meets or equals any of the specific impairments listed in Appendix 1 to Subpart P of the regulations. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If it does, the claimant is considered disabled, and is awarded benefits. Id. If not, the inquiry continues on to whether the claimant's impairments prevent the performance of past relevant work. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant satisfies this inquiry, the claimant establishes a prima facie case of disability, shifting the burden to the Commissioner for the fifth and final inquiry. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981); McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983). The final inquiry is whether the claimant is able to perform other forms of substantial gainful activity considering the claimant's impairments, age, education and prior work experience. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).

         A special process is involved when the claimant alleges a mental impairment. §§ 404.1520a(a), 416.920a(a). The Social Security Administration (“SSA”) must first evaluate the claimant's symptoms, signs and laboratory findings to determine whether claimant has a medically determinable mental impairment and document its findings. Id. If a medically determinable mental impairment is established, the ALJ must then “rate the degree of functional limitation resulting from the impairment” by examining the extent to which the impairment interferes with the claimant's “ability to function independently, appropriately, effectively, and on a sustained basis. §§ 404.1520a(b)(2), (c)(2) and 416.920a(b)(2), (c)(2). In doing so, the ALJ considers whether the claimant's “activities of daily living[, ] social functioning[, ] and concentration, persistence or pace” are mildly, moderately, markedly, or extremely limited, or not limited at all. §§ 404.1520a(c)(3), (4) and 416.920a(c)(3), (4). “A rating of ‘none' or ‘mild' in the first three areas”-that is, activities of daily living; social functioning; and concentration, persistence, or pace- “and a rating of ‘none' in the [category of episodes of decomposition] will generally lead to a conclusion that the mental impairment is not ‘severe, ' unless the evidence indicates otherwise.” White v. Astrue, 637 F.Supp.2d 363, 368 (S.D.W.Va. 2009) (quoting 20 C.F.R. §§ 404.1520a(d)(1) and 416.920a(d)(1)). The ALJ then must determine if the mental impairment is severe and if so, whether it qualifies as a listed impairment. § 404.1520a(d). If the impairment is severe but does not meet the requirements of a listing, the ALJ must assess the claimant's residual functional capacity (“RFC”) in light of how all of the claimant's impairments constrain his work abilities. § 404.1520a(d)(3). The ALJ must document each step of this process. § 404.1520a(e)(4).

         At step one, the ALJ determined that plaintiff had not engaged in substantial gainful activity from October 15, 2010, the application date, through September 30, 2015, plaintiff's date last insured. Tr. at 14. At step two, the ALJ concluded that plaintiff had the following severe impairments: a history of a left tibia fracture, history of a T-11 fracture, osteoarthritis, history of head traumas with borderline intellectual functioning, history of a thoracic spine trauma, and depression. Id. At step three, the ALJ concluded that plaintiff's impairments did not meet or equal any listing contained in the Listing of Impairments. Id. The ALJ next found plaintiff to have a RFC to perform sedentary work, with the additional limitations that the work be

unskilled and low stress without high production demands; no more than simple, routine, repetitive tasks with simple instructions; no interaction with the public; and only minimal indirect contact with others at the worksite.

Id. at 16. Based on plaintiff's RFC, the ALJ determined that he could not return to his past relevant work, but could perform jobs such as an inspector, machine feeder, or sorter. Id. at 19-20. Based on these findings, plaintiff was denied benefits. Id. at 20.


         The magistrate judge recommends that the court reverse the decision of the ALJ and remand the case to the Commissioner for further proceedings. Specifically, the magistrate judge concluded that the ALJ's decision is not based on substantial evidence because, “the ALJ's failure to explain his reasoning precludes a court from undertaking a ‘meaningful review' of his findings, ” particularly in light of evidence contained in the record that plaintiff may meet or equal Listing 12.05C. PF&R at 11-12.

         The Listing of Impairments, as a general matter, describes, for each anatomical system, impairments that are considered “severe enough to prevent an individual from doing any gainful activity, regardless of his or her age, education, or work experience.” 20 C.F.R. §§ 404.1525(a), 416.925(a). In order to meet a listing, a claimant's impairment must “meet all of the specified medical criteria.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis in original). “For a claimant to qualify for benefits by showing that his . . . combination of impairments . . . is ‘equivalent' to a listed impairment, he must present medical findings equal in severity to all the criteria for the one most similar listed impairment.” Id. (citing 20 C.F.R. § 416.926(a)) (emphasis in original). The ALJ must identify listings that are relevant to the claimant and compare “‘each of the listed criteria to the evidence of [the claimant's] symptoms.'” Ketcher v. Apfel, 68 F.Supp.2d 629, 645 (D. Md. 1999) (quoting Cook v. Heckler, 783 F.2d 1168, 1172 (4th Cir. 1986).

Listing 12.05 provides, [2] in pertinent part, Intellectual disability: Intellectual disability refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22.
The required level of severity for this disorder are met when the requirements in A, B, C, or D are satisfied.
. . .
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function;
. . .

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05.

         In order to meet Listing 12.05C, a claimant must satisfy the requirements of the introductory paragraph to the listing as well as the specific criteria of paragraph C. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00A.

         Pertaining to Listing 12.05C, the ALJ concluded,

[T]he “paragraph C” criteria of listing 12.05 are not met because the claimant does not have a valid verbal, performance or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function. The evidence failed to establish IQ scores prior to the age of 22 and significant restrictions in adaptive behavior as required in the listing.

Tr. at 16.

         According to the magistrate judge, “the record contains evidence suggesting that [plaintiff] may meet or equal Listing 12.05C.” PF&R at 12. The ALJ mentions elsewhere in his opinion that plaintiff had IQ subscores ranging from 62 to 81 and a full scale IQ score of 70 during his evaluation, when he was 37 years old, by Joann Daley, M.A. Ed.S., a clinical psychologist, in December 2012.[3] Tr. at 18. This does seem to contradict his statement at step three that plaintiff “does not have a verbal, performance, or full scale IQ of 60 through 70.” Id. at 16. The magistrate judge was unable to determine whether the ALJ “erroneously overlooked” the IQ score or dismissed it because it was not obtained before plaintiff, whose date of birth is November 4, 1975, was 22. PF&R at 12. The magistrate judge found that although the relevant IQ score in 2012 was not obtained before plaintiff was 22, “there are many possible reasons why an adult would not have obtained an IQ test early in life and the absence of an IQ test during the developmental years does not preclude a finding of mental retardation predating age 22. . . . [I]n the absence of any evidence of a change in a claimant's intelligence functioning, it must be assumed that the claimant's IQ had remained relatively constant.” PF&R at 12-13 (citing Luckey v. U.S. Dept. of Health & Human Services, 890 F.2d 666, 668 (4th Cir. 1989).

         The Commissioner argues that the magistrate judge erred in finding remand was required for the ALJ's failure to consider plaintiff's IQ score of 70. The Commissioner does so because the ALJ found that plaintiff failed to meet the other requirements of Listing 12.05C. Obj. at 2. According to her, “regardless of Plaintiff's IQ score, the ALJ reasonably found that Plaintiff failed to meet his burden of proof because he did not establish significant deficits in adaptive functioning as required by the Listing.” Id. at 3. In support of this contention, the Commissioner cites to evidence in the record including,

[P]laintiff had a strong employment history and worked for more than a decade as a construction laborer with a labor union, a job that required him to use machines, tools, and equipment such as jackhammers (Tr. 31, 174-76). Indeed Plaintiff's earnings show that he worked regularly between 1993 and 2010, earning between $20, 000 and $30, 000 for several years (Tr. 164). The record also suggests that Plaintiff did not stop working in 2010 due to his borderline intellectual functioning, but because he was laid off from his job (Tr. 32).
In addition to a strong work history, the record also demonstrates that Plaintiff was able to perform and did perform a variety of activities that are inconsistent with the definition of deficits in adaptive functioning . . . . Notably, Plaintiff lives in a house with his wife who works full-time; cooks simple meals; helps dad on a farm; drives a four-wheeler or tractor; watches football on TV and can follow the course of the game; watches ...

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